Even when individuals are not detained, the complexities of immigration law make the role of counsel for noncitizens in removal proceedings – who, unlike criminal defendants, have no right to government-appointed assistance of counsel – exceptionally important. For example, a 2011 study of cases initiated in New York – which was jointly conducted by the Vera Institute of Justice and the Immigrant Representation Study Group convened by Judge Robert Katzmann of the U.S. Court of Appeals for the Second Circuit – found that while 74 percent of non-detained individuals represented by counsel secured successful outcomes in their cases (defined as either relief from removal or termination of proceedings), that figure dropped to 13 percent for non-detained individuals who lacked legal representation. But as with the criminal justice system, in which individuals held in pretrial detention fare worse in their cases than individuals who are not detained, noncitizens in immigration detention fare considerably worse in their cases: only 18 percent of legally represented individuals in detention secured successful outcomes, while a scant 3 percent of unrepresented detainees were able to do so.

Moreover, the likelihood of obtaining legal representation in the first place is considerably lower for detained noncitizens – and lower still when ICE transfers those individuals long distances to remote detention facilities that are far from major urban centers, as the 2011 New York study found to occur with approximately 64 percent of individuals originally taken into custody in New York. According to Human Rights First, approximately 40 percent of ICE’s total detention bed space (which currently totals approximately 33,000 beds) is at least 60 miles away from an urban center – and in many cases even more remote. The consequences of rendition into this archipelago of facilities can be dramatic. A 2009 study by the National Immigrant Justice Center found that 80 percent of all detainees were held in facilities that were underserved by legal aid organizations. While non-detained individuals who remained in New York were represented by counsel in approximately 73 percent of all cases, only 21 percent of individuals who were transferred to these remote detention centers were legally represented in their proceedings. Those figures are broadly consistent with earlier data indicating that as few as 16 percent of detained individuals nationwide are represented by legal counsel in their proceedings. (Two reports by Human Rights Watch, one published in 2009 and one published in 2011, further document the massive scale of detainee transfers to remote detention facilities and the implications for access to counsel.)

In his posthumously published 2011 book,The Collapse of American Criminal Justice, William Stuntz draws attention to the role played by geography in the evolution of the politics of crime in the United States:

The vice wars of the late nineteenth and early twentieth centuries … invited voters in America’s small towns and countryside to weigh in on the character and consequences of crime outside of their own jurisdictions, chiefly in America’s cities. State and national politicians learned a crucial lesson: they could win votes in some places by attacking crime in others. [p.191]

In more recent years, the political geography of mass incarceration has contributed further to this underlying dynamic, as the incarceration of offenders in remote locations, far from their home communities, has given those remote communities tangible interests in maintaining or increasing those levels of imprisonment. While prison expansion has occurred in both urban and remote locations, it has had particularly significant consequences for smaller communities. In many instances, prison expansion has been pitched to these communities as offering significant economic benefits, even as the actual evidence concerning those supposed benefits has been more equivocal. Moreover, since the Census counts incarcerated offenders as “residents” of the jurisdictions in which the prisons are located, rather than their own home communities – even in situations in which those individuals are ineligible to vote – some remote communities have reaped political windfalls from the incarceration of these new “residents” in their communities when the boundaries of federal, state, and local political districts have been apportioned.

Thus, the “carceral bargain” (to draw upon Sharon Dolovich’s concept) by which the government excludes and maintains control over prisoners has an equivocal aspect. On the one hand, the bargain depends upon prisoners being largely invisible from the typical citizen’s day-to-day consciousness – so that, as Dolovich argues, “society as a whole . . . need not think about them again until they are released.” At the same time, however, that bargain is also reinforced, at least partially, by the ways in which prisoners’ local presence while incarcerated is tangibly felt and experienced in the communities where prisons are located.

The political geography of immigration detention offers an interesting variant on this dynamic. Immigration detention does not provide the opportunity for so-called “prison-based gerrymandering” presented by criminal incarceration, but local communities often are lured by similar hopes that detention might offer economic benefits. As Immigration Judge Wayne Stogner noted during last week’s HRF event in New Orleans, “there is only one reason why the Oakdale facility was built in the middle of nowhere: money.” When the facility was built back in 1985, Oakdale (population 7,100 at the time, and population 7,780 as of 2010) had endured significant economic hardships due to plant closings that prompted the loss of almost 1,000 jobs. With an unemployment rate of almost 32 percent, the promise of over 300 jobs as a result of a detention facility with almost 1,000 beds was an inviting one – indeed, a town meeting on the project reportedly drew hundreds of supporters and no opponents. When the town ultimately was awarded the facility, the local newspaper proclaimed, in a three-inch, red-inked headline, “WE GOT IT!”

For the federal government, recounted Stogner at the HRF event, Oakdale offered a location less costly than its competitors. But advocates suspected from day one that detaining individuals in such a remote location would interfere with individuals’ access to counsel. The ACLU and Lawyers Committee for Human Rights (the predecessor to Human Rights First) even filed suit to block INS from opening the facility, as the Houston Chronicle reported at the time:

Now, with the center nearing completion on a 30-acre fenced enclosure hardly three miles from City Hall, Oakdale's rather offbeat crusade would seem a sure thing - except for some meddling New York lawyers.

“The ACLU,” said Oakdale civic booster James Sandefur, accenting each initial of the American Civil Liberties Union the way a civil rights leader might say, KKK.

The ACLU has filed suit in Washington challenging the use of the Oakdale center to house aliens, arguing that the new prison is so far out in the sticks that immigrants would be automatically precluded from justice.

“The problem is that the city of Oakdale, in a rural area of Louisiana, only has five lawyers,” said Arthur Helton, director of the political asylum project of the Lawyers Committee for Civil Rights, which has joined the ACLU in the lawsuit.

Helton, careful to add that “while I'm sure that those five lawyers will do what they can,” said they would be too few to handle the hundreds of political asylum cases the detention center is likely to generate.

* * *

“There is a terrible tragedy in the offing," Helton said, arguing that if asylum cases are sent to Oakdale, the migrants will be processed and deported without a chance to adequately argue claims that they face political persecution back home.

Helton indicated suspicion that the INS may have picked rural Oakdale for exactly that reason: to avoid the free legal defense apparatus to aid aliens already in place in urban centers like Miami, San Francisco, New York and Houston. [link]

Helton was prescient, describing precisely what ultimately came to pass. (Indeed, above and beyond the lack of access to counsel that Helton predicted, mass transfers of detainees from the places where they were arrested to Oakdale and other facilities in Louisiana have often afforded the government the benefit of substantive legal standards that have been less favorable to the noncitizens’ claims for relief in removal proceedings, as Nancy Morawetz and Human Rights Watch have both documented.) But the ACLU and LCHR lawsuit was dismissed, and Oakdale became a foundational paradigm, of sorts, for what we might understand as an immigration detention variant of the “carceral bargain,” as state, local, and private actors have enthusiastically lined up in hopes of benefiting from the federal dollars that flow in their direction when they contract with ICE to detain noncitizens.

* *

The Obama administration’s detention reforms since 2009 have sought to temper some of these excesses, most notably by limiting the use of remote local jails and building greater detention capacity closer to the places where detainees live and are initially taken into custody. Through these adjustments, ICE hopes to limit the overall extent to which noncitizens are routinely transferred to locations far from their lawyers, families, and other community ties. These changes in ICE’s policies and practices could eventually contribute to greater access to counsel for many noncitizens in removal proceedings. However, as I have argued elsewhere, the immense and growing overall scale of immigration detention and enforcement makes the ultimate success of these initiatives deeply uncertain. Especially given the immense, unfulfilled need for access to quality legal representation for noncitizens – whether detained or not – transforming the political geography of immigration detention, along with its corresponding carceral bargain, remains a long-term challenge.

21 comments:

Very interesting and dispiriting. Here's a thought: In Al Maqaleh v. Gates, the DC Circuit, picking up on a suggestion by the majority in Boumediene v. Bush, says that if the government deliberately chose a detention site for the purpose of defeating habeas jurisdiction, that would count in favor of finding jurisdiction. The underlying legal questions are different, but I wonder whether one could make an argument that there is a general principle that says that the government cannot profit from its own wrong. Of course, here, as in Al Maqaleh, proving that the government chose the site for nefarious purposes would be challenging.

For a period of time in the late 1990s, there actually was a very crude variant on what you suggest taking place. After the 1996 immigration laws were enacted, but before INS v. St. Cyr was decided in 2001, it was unclear which court had jurisdiction to review final removal orders, District Courts on habeas corpus or Courts of Appeals on petitions for review. During that period, several district judges in New York (I recall Judge Weinstein in Mojica v. Reno and Judge Chin in Yesil v. Reno but there may have been others) not only concluded that habeas jurisdiction over removal orders still existed, but they could exercise jurisdiction over removal orders that were issued in Louisiana and other far-flung places when the noncitizens were New York residents -- concluding that the New York long arm statute permitted them to exercise personal jurisdiction over the noncitizen's custodian, whether in Louisiana or in Washington DC at DOJ or INS headquarters, because they had "done business" in New York or something like that. There wasn't any conclusion that the government had rendered those noncitizens for nefarious purposes, but I always got the sense when reading those cases that the district judges were troubled by the practice of transferring individuals to these remote locations.

All of that has now likely been superseded altogether by the combination of the Supreme Court's decision in Rumsfeld v. Padilla and the REAL ID Act's jurisdiction provisions, but I always found the political and social geography of habeas jurisdiction to be a particularly interesting dimension of the story of the litigation leading up to INS v. St. Cyr.

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